Gray v Ferguson [2008] NSWSC 984

New South Wales Supreme Court

CITATION : Gray v Ferguson [2008] NSWSC 984

HEARING DATE(S) : 01/09/08, 02/09/08

JUDGMENT DATE : 24 September 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 38

CATCHWORDS : Family Law. Application for adjustment of property interests under Property (Relationships) Act 1984. Order for purchase and adjustment. No matter of principle.

CATEGORY : Principal judgment

PARTIES : Deborah Anne Gray v Ian Ross McDowell Ferguson

FILE NUMBER(S) : SC 5287/07

COUNSEL : Mr S Bell for plaintiff Mr MW Anderson for defendant

SOLICITORS : Francis Lawyers for plaintiff Athena Touriki for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Wednesday 24 September 2008

5287/2007 DEBORAH ANNE GRAY v IAN ROSS McDOWELL FERGUSON JUDGMENT 1 His Honour: This is an application for adjustment of the parties' properties interests under section 20 of the Property (Relationships) Act 1984. The parties had a de facto relationship from 11 May 2004 until 2 November 2006. There are no children of the relationship but the plaintiff's two daughters, Elena and Claudia lived with the parties during the course of the relationship. The defendant had two children from a previous relationship but they did not live with the parties although one child visited from time to time. Background history 2 The plaintiff, Deborah Anne Gray, was born in November 1952 and the defendant, Ian Ross McDowell Ferguson, in January 1946. 3 The defendant had two children a son, Simon, borne in 1987 and a son Adrian born in 1991. The plaintiff had two children twins Elena and Claudia White born in July 1994. The parties first met in 2001 and in May 2004 they moved into rented accommodation in a house at Epping. In that rented property they contributed equally to household expenses, utilities and maintenance of the property. In October 2004 the parties agreed to purchase a property at Gloucester Avenue, West Pymble for $825,000. The purchase was completed on 26 November 2004 and the plaintiff and her children and the defendant moved into the house on that date. The plaintiff and defendant both provided half of the cash funds used to purchase of the property. There was also a joint mortgage of $450,000. From the time of the commencement of the mortgage both parties contributed equally to the repayments of the mortgage and the rates on the property. 4 In January 2006 there were problems with the relationship and by October 2006 the parties were contemplating what would occur when the relationship was terminated. In October 2006 the plaintiff offered to purchase the defendant's share of the property for $165,000 and payout of the defendant's interest in the mortgage. The defendant rejected the offer. 5 The defendant left the relationship and the property at Gloucester Avenue on 2 November 2006. From that time the plaintiff commenced to pay all mortgage payments, rates, maintenance and expenses. The only exception was one rate notice for $307 which was paid by the defendant. The plaintiff and her daughters continued to live in the property at Gloucester Avenue. 6 In November 2006 the property at Gloucester Avenue was valued at $750,000 which was less than the parties had paid at an earlier stage of the relationship. 7 In April 2007 the plaintiff changed the mortgage payments to interest only payments. In June 2007 the defendant found out about the change to the mortgage and he instructed the bank to change the home loan back to principal and interest repayments even though he was not making the repayments. At that time he had moved into rented accommodation. 8 In June 2007 the without consulting the plaintiff, the defendant withdrew $6,350 from the joint account such funds that were in the account were contributed by the plaintiff. I will return to the reasons for his action later in this judgment. 9 In August 2007 the value of the property had decreased to a value of $745,000 and in March 2008 the value of the property, according to a joint valuation, was $770,000. 10 In Howlett v Nielson (2005) NSWCA 149 the Court accepted that the exercise of jurisdiction under s 20 of the Act involved three steps.